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Do Sperm Cells Constitute “Property” Subject to Division After Separation?


Do Sperm Cells Constitute “Property” Subject to Division After Separation?

Here’s a new one: In a recent British Columbia case called M. (J.C.) v. A. (A.N.), the court was asked to consider the interesting issue of whether 13 sperm straws (which are the vials containing a sperm donation), were “property” in the context of a Family Law case involving a separated couple.

During their 8-year relationship, the female same-sex partners had each given birth to one child apiece, with the children having been conceived through therapeutic insemination with sperm from the same donor.

When the couple later separated, they entered into a separation agreement which dealt with child custody and support. It also purported to deal with division of their joint property; however, the division of the sperm straws, which were being stored at a fertility clinic, was inadvertently overlooked. Each sperm straw had cost about $250, and had been donated by a donor who had “retired from the program” and was no longer giving donations.

When one of the ex-partners later entered into a new relationship, she wanted to have a second child using the remaining sperm straws that were stored at the clinic. (This would ensure that her second child was biologically related to the first one). She offered to pay her first spouse $250 each for half of the sperm straws. The first spouse, however, preferred to have them destroyed.

This is when the matter came before the court for a ruling.

The court was asked to decide whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.

The court considered a selection of cases from around the world, illustrating how the courts of different jurisdictions had treated the important legal and ethical issues that arise from dealing with the ownership of items such as semen samples, embryos, sperm, corpses, human body parts, and other substances that are “generated by the human body.”

Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.

For the full text of the decision, see:

M. (J.C.) v. A. (A.N.), 2012 BCSC 584

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.